MUSSMAN v. THE STATE.
| Decision Date | 06 July 2010 |
| Docket Number | A10A0607.,BA-024 |
| Parties | MUSSMAN v. THE STATE. |
| Court | Georgia Court of Appeals |
Aron Mussman appeals the trial court's denial of his motion to suppress evidence or dismiss the indictment against him for vehicular homicide following a single-car accident during which the other occupant died. He argues that the State violated OCGA § 17-5-56 (a) and his due process rights by failing to preserve constitutionally material evidence that he needed to defend himself, which was the vehicle from which the State acquired the evidence it intends to use against him. He further contends the State acted in bad faith by failing to preserve the evidence and by waiting for six months to inform him that he was a suspect. Because we find that the State violated the statute requiring it to preserve physical evidence from which itobtained biological material, and acted in bad faith by failing to preserve constitutionally material evidence, the trial court erred and we reverse.
On October 9, 2007, Mussman was involved in a single-car accident in which the other occupant of the car, Daniel Stephens, died of blunt force trauma to his head and chest.1 The accident occurred when the car, a Mazda Miata convertible, slid counterclockwise and rolled, landing upside down. After examining the positions of the seatbelts at the scene, the investigating police officer concluded that the passenger had been wearing a seatbelt but the driver had not been wearing one. In his preliminary report, the officer said Mussman, who was not injured, had been the passenger and Stephens had been driving. Mussman was questioned and released from the scene with no indication he was suspected of criminal activity.
The police impounded the car, photographed it, and removed samples of biological evidence from the interior. On October 29, 2007, without notice of the contemplated criminal charges against Mussman, the State released the car to a towing service. Mussman's father contacted the car's insurer, and the company paid Mussman for the total loss. About three weeks later, Mussman gave the police a statement, and again received no indication he was suspected of a crime. The father testified that he and Mussman never considered preserving or maintaining the car themselves because they had no idea Mussman would be charged with anything related to the accident and would need evidence from the vehicle for his defense.
In April 2008, six and a half months after the collision and approximately six months after the State released the vehicle, the investigating officer obtained a warrant for Mussman's arrest. In July 2008, Mussman was indicted for homicide by vehicle, accused of causing Stephens' death by recklessly speeding and failing to maintain his lane. His attorney immediately hired an investigator to find the car, which had been purchased by a salvage wholesaler. The investigator determined that the salvager sold the car in January 2008 to a mechanic in Quebec, who cleaned, repaired, repainted, and resold the vehicle, thus rendering it useless for purposes of an independent examination.
Mussman moved to dismiss the indictment and suppress any evidence the State obtained in violation of his constitutionally guaranteed right to examine critical evidence to be used against him. He argues that the State acted in bad faith by failing to maintain the car or inform him that he was a suspect before releasing thecar. At a hearing on the motion, the officer admitted that law enforcement in Gwinnett County only keep cars in vehicular homicide cases they consider "unsolved." Once they "solve" a case, they release the car. Here, the investigating officer examined the vehicle first at the scene, then at the impound lot two days later, then a third time with the county medical examiner the next day. The officer took multiple photographs of the car's interior and exterior, selecting views he thought were "appropriate."
The medical examiner testified that Stephens, who was 6'2" and 147 pounds, had sustained numerous injuries in the crash, including multiple bruises, scrapes, broken facial bones and skull fractures. The left side of his head was flattened; he had mud in his mouth; and he had sustained an injury on the right back side of his head. The medical examiner looked at Stephens' clothing but did not see anything that she thought had any evidentiary value, although she did not know if the clothing had been cut at the hospital or torn during the wreck. The clothing was not photographed or saved.
Both the State and Mussman agree that the car's passenger had been wearing a seatbelt and the driver had not been. The medical examiner and the investigatingofficer concluded that the pattern of an injury on the back of Stephens' head appeared to be "consistent with" a hinge located on the convertible top behind the passenger seat. This match led them to believe that Stephens had been the seatbelted passenger and Mussman had been the unbelted driver. The medical examiner saw no marks indicating that Stephens had been wearing a seatbelt, however, and a hospital nurse told the investigating officer that Stephens bore no obvious signs he had been wearing a seatbelt. The record contains no photographs of Stephens' body. A crime scene investigator recovered blood and hair from the hinge on the convertible top and sent it to the crime lab for DNA testing. The testing ultimately confirmed that the biological material came from Stephens, which is not surprising considering that Mussman was not injured in the wreck.
Mussman's expert, a certified automobile accident investigator, disagreed with the conclusion of medical examiner and the investigating officer that Stephens had been the passenger. He testified that without access to the car itself, however, critical evidence was missing that would have corroborated his conclusion that Stephens had been driving. For example, he said, when a car rolls, an unbeltedoccupant becomes a "loose free object" inside the car and can strike multiple interior sites. The expert could see various stains on the interior of the driver's side door from the pictures, but could not identify what they were without a physical examination. He could not identify other interior marks from the State's pictures. An interior inspection of the car itself would have allowed him to examine the stains he could see in the pictures and any other marks made by hands, fingers, or other body parts, and imprints or transferences of thread, color, or pattern from clothing or shoes, all of which would have given him additional information to establish who had been driving the car. He could see from the pictures that the driver's seatbelt was slightly extended but could not determine why without inspecting the mechanism.
Without a physical examination, the expert was also unable to determine how many times the car had rolled, which would have helped him determine the occupants' "kinematics," or trajectory inside the car as it rolled. While the State took multiple pictures of the car's exterior, the pictures did not show details such as the direction of striation marks in the paint on the hood. Given access to the car, theexpert also could have gathered the shattered windshield glass to look for fabric, debris, or biological material.
Regarding the hinge pattern on the back of Stephens' head, the expert testified that it was unlikely that the head of a seatbelted passenger would have hit a hinge located directly behind and below his seat. He pointed out that "[t]he proximity of that piece of equipment to the passenger doesn't tell you whether the passenger hit his head on the equipment," because the unbelted driver became a loose object during the wreck and could have hit his head anywhere within the car. During the rollover, the seatbelt would have tightened to hold the passenger's upper body against the seat back, and his head would have had to extend over the headrest and then downward to strike the hinge, which would be a serious design flaw. Additionally, the car sustained no rear impact that would cause the passenger's head to slam backward.
At the end of the motions hearing, the trial court orally found no bad faith on the officers' part, although its one-paragraph written order simply denied the motion to suppress or dismiss without explanation. This court granted Mussman's application for interlocutory review.
Mussman contends that the trial court erred in finding that his federal and state due process rights would not be violated if the State prosecuted him for vehicular manslaughter using the results of its examination of the car it failed to maintain. The missing evidence was constitutionally material, and Gwinnett County law enforcement's policy of releasing it once it deems a vehicular homicide case "solved" constitutes bad faith, he asserts, as does its failure to comply with a statutory mandate to preserve the evidence. Further, he argues, it would be fundamentally unfair to try him when all of the evidence critical to his defense has been destroyed.
The State responds that no State action was involved in disposing of the car, which took place after it was released to the towing service and then under the control of Mussman and his father. Further, even if there were State action in disposing of the evidence, the State argues, it committed no due process violation because the lost evidence was not constitutionally material and the officers did not act in bad faith.
1. OCGA § 17-5-56 (a) requires the State to "maintain any physical evidence collected at the time of the crime that contains biological material, including, but not limited to, stains, fluids, or hair samples that relate to the identity of the perpetratorof the crime...." OCGA § 17-5-56 (b) specifies how long the State must maintain that evidence following a conviction, depending on the type of case involved. This statute was introduced in 2003 "as part of an effort to allow the law...
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